60 Wash. 647 | Wash. | 1910
Action by Ed. Easterly against Eatonville Lumber Company,, a corporation, to recover damages for personal injuries. From a judgment in his favor the defendant has appealed.
Appellant’s controlling assignment is that the trial court erred in denying its motion for a nonsuit, and its motion for a directed verdict.
In support of its assignments of error, the appellant first contends that the alleged promise to repair was not made by any vice principal or other person having authority. Under our construction of the pleadings, it is in effect conceded that A1 Cook and Harry Morgan, to whom respondent complained, were appellant’s foreman and head millwright. The complaint alleges that respondent “thereupon complained to the foreman, A1 Cook, who thereupon promised him that he would arrange and adjust the same [the chute] so that it would not pack sawdust, and that plaintilf would not be required to re
Appellant further contends it does not appear from the evidence that the foreman or millwright requested respondent to continue work, or that they knew he was using the dangerous method of releasing the dust by using a short stick or piece of shingle, near the moving saw; that nothing was said between them and respondent relative to the dangers to which he was subjected, but that his complaint had reference only to the alleged improper construction of the chute. This is a technical contention, without substantial merit. There was evidence that all shingle weavers in the mill constantly used the same method for releasing accumulated dust in a chute in front of a saw, and that the respondent, by reason of the improper construction of the chute, was required to remove it much more frequently, subjecting him to greater danger. The foreman,- who was constantly about the mill, must have known these facts. He and the millwright knew the respondent continued his work, and must have assumed that he continued it in the usual manner. There is no contention that he was ordered or expected to abandon the machine or permit it to
Appellant further contends that the method of releasing the sawdust with a piece of shingle near the moving saw was very dangerous, a fact known to respondent, and that it was the duty of the court to adjudge him guilty of contributory negligence as a matter of law, in continuing work, knowing of such imminent danger. Whether the method was so imminently and certainly dangerous as not to be adopted by an ■employee, acting with ordinary prudence and'caution, was in the light of the evidence as to the usual method of work, the promise to repair, and respondent’s reliance thereon, a question for the determination of the jury under proper instructions from the court. The trial judge, at appellant’s request, did instruct as follows:
“You are instracted, gentlemen of the jury, that the plaintiff cannot recover in this action without showing that the defendant, through one of its authorized agents, promised the plaintiff to repair the chute or conveyor in such a manner that the sawdust would not accumulate so as to render its removal necessary, and that the complaint was made by plaintiff for the purpose of providing for his safety while using this saw, and that the promise was made with a view to his safety, and that the said plaintiff continued to work at the saw relying upon the fulfillment of the said promise, and that but for the said promise he would not have continued to do so; and even if you find these facts to be true, if you also believe from a fair preponderance of the evidence that the danger of removing the sawdust in the manner in which the plaintiff undertook to do so was so imminent and threatening that a reasonably prudent man would not have undertaken to do it, and that the manner in which it was done amounted to recklessness, you will find for the defendant.”
Appellant further contends that the respondent was guilty of contributory negligence in attempting to remove the dust while the saw was in motion; that he was provided with proper appliances to stop the saw without disturbing any other moving machine or other portion of the mill; that a safe way was thus provided for him to remove the dust; that instead of adopting the same, he voluntarily elected the dangerous and unsafe plan of using a piece of shingle near the moving saw, and that in so doing he was, as a matter of law, guilty of such contributory, negligence as to preclude any recovery. There was evidence that the sawdust clogged the chute frequently and repeatedly, especially at this particular machine; that to stop the saw in each instan.ee would consume much time; that appellant’s employees were working by the piece; that the method adopted by respondent was the usual one adopted by all the employees in the mill, and that ordinarily the machine was stopped only when it became necessary to change a dull saw for a sharp one.
No two actions are identical. Each must be considered in the light of its - own facts and environment, and be determined on correct legal principles. Relative to the effect of the promise made by appellant’s foreman and head millwright, respondent cites the case of Shea v. Seattle Lum. Co., 47 Wash. 70, 91 Pac. 623, but appellant, attempting to distinguish its facts, insists that it is not pertinent. The reason-appellant’s foreman and head millwright promised to change the chute was that improper construction had caused it to become clogged more frequently than if properly constructed,, thereby subjecting respondent to a greater degree of danger* Manifestly their promise contemplated relief from this condition. They must have realized that was what respondent desired. No other incentive existed for the complaint and request made by him. They must also have been aware of the-
“It is elementary law that it is the duty of a master to provide his servant with reasonably safe machinery, tools, and appliances with which to perform the work required of him, and to also keep the same in reasonably safe condition. Whether the stick used met this requirement was a question of fact to be submitted to the jury. It is contended by the appellant that the respondent had just as much knowledge of the fact that the stick was a dangerous and unsafe appliance as had the master, and that the respondent therefore assumed the risk of all dangers which might result from its use. This would be true had the respondent continued its use without objection or complaint after he actually appreciated the danger, but he only did so for a reasonable time while relying on the promise of the master. After appellant’s foreman had made this promise, it assumed all risk of danger arising from respondent’s careful use of the unsafe appliance during such reasonable time as might thereafter be necessary to provide the iron rod.”
The fact that the edger and saw were not in the control of Shea was mentioned by this court, but calling attention to other material facts, we further said:
“The evidence further indicates that the custom in appellant’s mill was to clean the chute while the edger was running. It is not shown that the machinery was ever stopped, or that the saws were moved by respondent or any other employee, at any time in the history of the mill for the purpose of cleaning the chute. The fact that a long stick was provided in
Under the facts and circumstances disclosed by the evidence now before us, the question of respondent’s alleged contributory negligence was for the jury. The trial judge instructed as follows:
“You are instructed, gentlemen of the jury, that if you believe from a fair preponderance of the evidence in this case that a reasonably prudent man would not have undertaken to punch out the sawdust in the manner plaintiff was doing at the time of his accident, but that such a man would have Used the lever and thrown off the tightener, and stopped the saw before doing it, you will find for the defendant.”
Under this instruction and the evidence, the jury found for the respondent. The question involved was for their exclusive determination, and their verdict cannot be disturbed.
It is contended that the jury awarded excessive damages. The respondent, an experienced shingle weaver, twenty-four years of age, sustained an injury to his thumb and lost portions of two fingers, which impaired his earning capacity to the extent of at least fifty cents per day. His life expectancy was about thirty-eight years. He has suffered much pain and inconvenience. The jury awarded $2,750, which we regard as abundant compensation. We do not, however, con-
The judgment is affirmed.
Rudkin, C. J., Dunbar, Chadwick, and Morris, JJ., concur.